25 comments:

2) As the talkleft story concedes, it's not necessarily even correct:"the 1930 census records show Alito's grandfather, Anthony, came to the US in 1913. His wife, Mary, and his son Samuel (our Samuel's dad), came in 1914, which is also the year Sam père was born. The census record states that all three were born in Italy, and as of 1930, Anthony had been naturalized, but not Mary or Samuel père . . . Personally, I think that Samuel père may have fudged his birthplace when he joined the army. That is, he might simply have failed to mention he was born in Italy."

3) Furthermore, do you really want to trust a news source which says - with a straight face - "as if [Bush] cares about immigrant rights, when we all know he is about to trample those rights." Well, first of all, that's just flat-out ignorant; Bush is, in point of fact, one of the most enthusiastically pro-immigration Republicans, to the point that, prior to Miers, it was one of the most seriously divisive fracture points in the GOP (see National Review, Dec. '04, "GOP Crackup ahead?"). Furthermore, there is zero indication, none at all, that any Republican who is taken seriously has any desire to trample the privilege - not right, privilege - of immigrating to this country. What most people, excepting Bush, are trying to stamp out is illegal immigration, which is a very different issue, and well they should. (I say the foregoing not as some armchair quarterback, but as someone who DID immigrate to this country, and feels deeply grateful for the privilege of having been able to do so. You will find no stronger constituency for clamping down on illegal immigrants than people who came here legally).

4. As a commenter over at TalkLeft points out, it's far from implausible that Sam Alito Jr. has no idea. Do you know where your father was born? How do you know? I know that my dad was born in Nottingham, UK - and I know that because he's told me so. I've not checked the birth certificate, I'm willing to bet you haven't, and I'm willing to bet that Sam Alito Jr. hasn't either.

As EJ Dionne points out in today's WashPost, can we get back to talking about issues which actually matter? This guy is going to sit on the Supreme Court for thirty years and we care about whether his father was born in New Jersey or simply moved here before he could as much as crawl? Please.

It may be irrelevant, except is says that this white house (as is all too often the case) jumped before they checked their facts. Sometimes, like this, it is about something minor. Sometimes it is a little more serious (remember Bernie Kerik). Sometimes, it is critically serious (like whether to invade Iraq).

"Oh, that application, I was lying on it to get a job."I have to admit that I'm sick of the attempts to spin away that memo. Even if he didn't mean it, he should have. As Southern Appeal's Verity put it recently, "Just say it! . . . Stop the hedging, rationalizing, and discounting of everything Alito has said. Just say it: Roe should be overturned."

"Oh, the thing where I said I was not an activist judge, yeh, that was a little fib too. Ain't I a stinker?" Since I doubt that you and I agree on a definition of what constitutes judical activism (see Less nebulous than you'd think, 9/23/2005, at pp.2-4), there's little sense in arguing about it, but for the sheer amusement value, let's hear what you've got. Sam Alito is a judicial activist because...?

I'm not kidding. It's terrible to put a bad fact out there like that, opening the nominee up to the kind of taunting we're seeing here. Get the facts straight. Where his father was born doesn't make much difference to his qualifications, but he's chosen to offer it as having some value, and he's got to have the facts straight. If it is true, the critics need to be knocked down.

If his father did lie about his birthplace in order to serve his country, good for him. But if Alito knew it wasn't true and didn't say anything to correct the record, though it may be a small thing, it hurts his credibility. And it's dumb to lose credibility over something so, well, dumb.

Ann,Did anyone ask you about your father during your tenure interview? I'm guessing not, and I suspect you'd have (rightly) objected to the relevance. Worse yet, what if they had asked you where he was born, you'd said (wherever) and it turned out that he was born in (somewhere else)? These questions are invasive and irrelevant. IMHO, Bush shouldn't have brought the issue up, but this is a non-story.

Simon, if you reread my post you'll see that "quote" was intended to have come from the future when he explained that yeah, he lied to Senator Magic Bullet, et. al., when he said he wasn't an activist.

Since you asked me, I will commit the cardinal sin of teh Intarweb and cut and paste some links here. I will catch flak from you folks for this later, but you did ask. But I don't really intend to argue these issues here. Ann has already argued the ones that she thinks are of interest. (I would have loved an Ann experiment, which would have had two Anns, one that saw the propaganda and the controversies as they arose as they did in this universe, and one in which she saw all the stuff all at once at one sitting and didn't comment until the end.)

Apparently though, concerning his record:

http://www.slate.com/id/2129106/nav/tap1/

Best of all for Bush's base, Alito is the kind of "restrained" jurist who isn't above striking down acts of Congress whenever they offend him. Bush noted this morning: "He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people."

Except, of course, that Alito doesn't think Congress has the power to regulate machine-gun possession, or to broadly enforce the Family and Medical Leave Act, or to enact race or gender discrimination laws that might be effective in remedying race and gender discrimination, or to tackle monopolists. Alito thus neatly joins the ranks of right-wing activists in the battle to limit the power of Congress and diminish the efficacy of the judiciary. In that sense Bush has pulled off the perfect Halloween maneuver: He's managed the trick of getting his sticky scandals off the front pages, and the treat of a right-wing activist dressed up as a constitutional minimalist

http://www.usnews.com/usnews/news/articles/050719/19alito.htm

Alito's conservative stripes are equally evident in criminal law. Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as "an activist conservatist judge" who is tough on crime and narrowly construes prisoners' and criminals' rights. "He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait," Lustberg says.

and

http://www.newdonkey.com/2005/10/judging-alito.html

Jeffrey Rosen

Known as "Scalito," or little Scalia, he is considered less blustering than the big guy, but liberals will undoubtedly balk at his abortion record. In 1991, he dissented from a decision to strike down Pennsylvania's spousal notification provision--a decision the Supreme Court later upheld in Planned Parenthood v. Casey, the decision that reaffirmed Roe v. Wade.

What should be far more troubling to Senate Democrats, however, is Alito's 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." His lack of deference to Congress is unsettling

Rejects basic protections for workers: In a number of dissenting opinions, Alito has taken positions that, if adopted, would have made it more difficult for victims of race and sex discrimination to prove their claims. In one case involving claims of race discrimination, the court majority sharply criticized Alito's dissent, stating that Alito's "position would immunize an employer from the reach of Title VII" in certain circumstances.

...

and

http://www.bradycampaign.org/press/release.php?release=702

“Judge Alito’s decision reeks of right wing judicial activism, a willingness to concoct bizarre readings of the law in order to strike down reasonable laws with which he disagrees,” said Michael Barnes. “If even a no-brainer like the machine gun ban doesn’t meet Judge Alito’s standards, it appears that Justice Alito would try to neuter the ability of the people’s representatives to enact all manner of sensible gun legislation.”

ALITO WEAKENED EXISTING ANTITRUST AND DISCRIMINATION LAWS: Alito has shown a willingness to push the boundaries of the law for the benefit of corporate interests. In the 2001 case LePage’s v. 3M Corp. Alito sided with the 3M Corp, arguing that its bundling techniques did not violate the Sherman Antitrust Act. Judge Sloviter, the dissenter on the three-person panel, argued that Alito’s decision would "weaken Section 2 of the Sherman Act to the point of impotence," in addition to weakening marketplace competition. (The Third Court eventually heard the case en banc and sided with Sloviter, in a 7-3 decision.) In Bray v. Marriott Hotels (1996), Marriott sought to deny the plaintiff, an African-American woman, the right to present her case of racial discrimination. Alito sided with Marriott, while the majority siding with Bray criticized Alito for overstepping his judicial role and "acting as a factfinder [and] taking it upon himself to interpret the meaning of the deposition testimony of one of the defendants." "Title VII would be eviscerated if our analysis were to halt where the dissent suggests,"wrote the majority. Alito’s willingness to change legislation at all levels of government show "that there’s a real chance that he will, like Justice Scalia, choose to make law rather than interpret law," said Sen. Charles Schumer (D-NY).

Overall, as Mark Tushnet argues in The American Prospect:

[L]ooking at Judge Alito’s record, it’s hard to find anything a conservative would disagree with. He interprets the free-exercise clause expansively because it protects the rights of religious dissidents, which is the self-characterization of many religious conservatives in what they see as a secular society. He interprets the establishment clause restrictively because it keeps religious conservatives from enacting their preferred agenda when they happen to control a school board or city council. And he obviously disagrees with Roe v. Wade, having voted to uphold the one provision of the Pennsylvania abortion statute that the Supreme Court struck down in the Planned Parenthood v. Casey decision of 1992.

and

http://www.slate.com/id/2129107/nav/tap1/

Yes, Alito shares Justice Antonin Scalia's ambivalence toward judicial activism. Both men tout their own restraint in deferring to majorities that step on individual rights (including a woman's decision whether to bear a child). Both men also act aggressively to override majorities that touch states' rights like sovereign immunity from lawsuits. And neither Scalia nor Alito has really explained how to reconcile the criticism of activism on one front with the embrace of activism on the other.

I think that originalism, while a nice romantic and elegant intent, is impossible in reality. First, everyone has a bias, especially recorders of history, and especially interpreters of the constitution, and second, since we had no notion of DNA, or computing, or information theory, or surveillance, or ubiquitous and cheap cameras, and didn't understand the human body and the human mind as we do today, that leaves enormous holes or just plain errors in following originalism.

It wouldn't have been an issue had Alito not chosen to highlight his father's role, how much he learned to empathsize with weak and underprivileged, etc etc etc. Really, I'd much prefer to have Alito come out and say what he really thinks about abortion, Establishment clause, his views on the Fourth amendment, etc rather than to discuss his father. But it's Alito who would not let us have this substantive discussion.And quxxo is right, it fits right into Alito's pattern of not being straight about well, anything.

Re http://www.slate.com/id/2129106/nav/tap1/:Thinking Congress cannot regulate machine gun possession is hardly a minority view; indeed, anyone who has actually read the Second Amendment must share it, or re-read the Second amendment until such time as they do share it. There is debate over whether the states can violate the Second; there is not regarding Congress. Ann has already demolished your (an Lithwick's) position on

As a general rule, I am not inclined to look favorably on Dahlia Lithwick as an authoritative source; she's alright if you look on her as a blogger and react accordingly, but while she is funny and enjoyable, she can hardly be trusted to give it to you unvarnished, as this story demonstrates. Of course, if she did, she'd be fired from Slate (name one writer at slate inclined to give, say, Justice Thomas a fair run for his money. Go on. name one), so that is perhaps understandable. Hence, enjoy Dahlia, but leave bullshit filters at maximum.

Links from savethecourt.org are per se invalid in debate, as are comments from Democratic-voting attorneys who've lost cases before him. If this is all you've got, it seems to me that you've got nothing. You've not posted anything that demonstrates anything other than that Alito does not share the standard liberal presumptions about the role of the judiciary and the nature of the Constitution. You, of course, will regard not being a liberal as being a failing of Alito, while I regard it as being a virtue.

Incidentally, do you REALLY want to post links from someone who refers to Originalism as the theory of original intent? Who says that Scalia, who has spent twenty years disavowing the intentions of the framers of statutes and the constitution, believes in original intent? It seems to me that such a person forfeits the right to be taken seriously. They either don't know the difference, or hope you don't. Neither lends them credibility.

Thanks. In all fairness, it's very common for both conservatives and liberals to conflate originalism with original intent (which is one of the movements in originalism).But your main point is correct that Scalia does not subscribe to original intent, rather he subscribes to original understading.

Right. Because no one who subscribes to textualism should be interested in original intent, because original intent and textualism are fundamentally incompatible. Even if there IS a single, unified original intent, and even if we can determine it from two hundred years hence, why on Earth would we be interested in the subjective intent of the people that drafted the Constitution when we are not interested in the slightest in the intent of the Congress which passed a law yesterday? I mean, obviously, we aren't. See the Wikipedia entries for Originalism, Original intent and original meaning for more discussion (and I'm not palming you off, since I wrote a lot of those three articles).

If you're a formalist, it seems to me, you have to be a textualist, and if you're a textualist, you have to buy into original meaning. And, of course, since most originalists are textualists, very, very few originalists subscribe to original intent.

Since the two theories are very easily differentiable, one can only conclude that when a person who has a law degree writes an article for the lay reader, and conflates the two, their intent is duplicitous. Liberals like to call originalism "the theory of original intent" because that permits them, when addressing people who know no better, to use criticisms of original intent that would not be valid against other forms of originalism, and have them stick none-the-less.